High court reversal gives hope for widow

SANTA FE - The New Mexico Supreme Court gave new hope Thursday to a widow whose husband drowned a decade ago after saving a boy who fell in the Rio Grande.

In a 5-0 decision, the justices reversed lower court rulings that Cheryl Schultz was not entitled to workers' compensation benefits in the death of her husband, Kevin.

Now the case will be returned to the New Mexico Court of Appeals to determine if Kevin Schultz died within the course and scope of his employment as a police officer.

Schultz, 44 when he died on Aug. 17, 2002, had taken a day off from his job with the Pojoaque Tribal Police Department to chaperone an outing for children from his church. He dived into the river near Pilar when he saw a 12-year-old boy floundering.

Schultz saved the child's life but lost his own. A medical examiner said Schultz may have hit his head on a rock when he rushed into the water, an injury that prevented his own escape from the river.

Cheryl Schultz filed for workers' compensation benefits, but the police department and its insurance carrier, New Mexico Mutual Casualty Co., said she missed the deadline. In addition, they said Officer Schultz was not on the job and was outside the jurisdiction of Pojoaque Pueblo when he died.

Both a workers' compensation judge and the state Court of Appeals ruled that Mrs. Schultz did not file for benefits within the time limit. But the Supreme Court reversed that decision, accepting evidence that the police department misled her.

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George Wright Weeth, the attorney for Mrs. Schultz, said the only reason she did not file a claim for workers' compensation benefits within the one-year deadline was that tribal police lulled her into a false sense of security. Weeth said they promised that they were handling all the paperwork on behalf of Mrs. Schultz.

John Garcia, chief of the Pojoaque Tribal Police Department, said he did not remember telling Mrs. Schultz this, but added: "If she said that, it must be correct."

In ruling for Mrs. Schultz, the Supreme Court said it accepted the the chief's statement as truthful.

The allegation of a missed filing deadline was the insurance company's main argument against paying benefits to Mrs. Schultz. But its lawyers also said Officer Schultz was off-duty and in a different jurisdiction when he rescued the boy.

Weeth said he had strong arguments to bolster that part of Mrs. Schultz's case.

Officer Schultz is listed on the National Law Enforcement Officers Memorial in Washington, D.C. It only honors officers who die in the line of duty, Weeth said.

Detective Tom Grady of the Pojoaque tribal police sent the paperwork seeking this honor for Officer Schultz. Grady made the case that Officer Schultz died while performing the act of a selfless policeman.

Weeth also produced a letter from the lieutenant governor of Pojoaque Pueblo, who wrote that the tribal government considered Schultz's death to be in the line of duty.

His reasoning was that Schultz acted the way a police officer should have, no matter that he technically was not on his beat or in uniform.

Milan Simonich, Santa Fe bureau chief of Texas-New Mexico Newspapers, can be reached at msimonich@tnmnp.com or 505-820-6898. His blog is at nmcapitolreport.com

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